[EL] FW: DC Circuit decision on recess appointments - Canningv. NLRB

[Marty Lederman]

I'm hardly up to speed on these questions, but my understanding was that
this "holding" of *Buckley* had been largely undermined by the decisions in
*Ryder *and *Nguyen*.  In *Ryder*, the Court noted that the constitutional
challenge raised by the plaintiffs in *Buckley "*was decided in their
favor," and that therefore to the extent it "may be thought to have
implicitly applied a form of the *de facto* officer doctrine, we are not
inclined to extend [it] beyond [its] facts."

On Sun, Jan 27, 2013 at 5:35 PM, Ronald Levin <Levin at wulaw.wustl.edu> wrote:

> On the question of whether a defect in the appointment of  FEC
> commissioners renders their past actions void, Buckley v. Valeo would seem
> to be in point.  After holding that House and Senate leaders cannot appoint
> commissioners, the Court continued:****
>
> ** **
>
> It is also our view that the Commission's inability to exercise certain
> powers because of the method by which its members have been selected should
> not affect the validity of the Commission's administrative actions and
> determinations to this date, including its administration of those
> provisions, upheld today, authorizing the public financing of federal
> elections. The past acts of the Commission are therefore accorded de facto
> validity, just as we have recognized should be the case with respect to
> legislative acts performed by legislators held to have been elected in
> accordance with an unconstitutional apportionment plan.****
>
> ** **
>
> 424 U.S. at 142.****
>
> ** **
>
> Ron Levin****
>
> ** **
>
> ** **
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Paul Lehto
> *Sent:* Friday, January 25, 2013 12:36 PM
> *To:* Marty Lederman
> *Cc:* Scarberry, Mark; law-election at department-lists.uci.edu
> *Subject:* Re: [EL] FW: DC Circuit decision on recess appointments -
> Canningv. NLRB****
>
> ** **
>
>
> On Fri, Jan 25, 2013 at 1:12 PM, Marty Lederman <lederman.marty at gmail.com>
> wrote:****
>
> Well, if the Supreme Court were to affirm -- a big if -- it would call
> into question the actions of hundreds of recess appointees going back to
> 1921, if not 1823.  There would then be a wholly separate question, of
> course, of whether any of those decisions could be retroactively
> challenged, particularly after time has long passed.****
>
>
> Void *judgments* can be attacked at any time, either directly or
> collaterally, and most courts hold no passage of time cures a truly void
> judgment.  Thus "a void judgment, order or decree may be attacked at any
> time or in any court, either directly or collaterally" - The law is
> well-settled that a void order or judgment is void even before reversal.
> *Vallely v Northern Fire & Marine Ins. Co*., 254 U.S. 348, 41 S.Ct. 116
> (1920)
>
> But the question at hand is not judicial voidness but *executive*voidness, and there are distinctions that could be made here. So, my
> question is whether anyone has briefing or history, outside the opinion
> itself, that would set forth the rules as to void executive appointments
> specifically, without conflating these with void judicial decisions?
>
> A void* judgment* lacks jurisdiction and thus the court has no power to
> enter it. The President clearly has the power to appoint, and a certain
> recess appointment power as well, but not the power to avoid confirmation
> processes in the particular way it was done here, according to the DC
> Circuit.  It would seem that the failure (I presume) of the Senate to
> object either in this case or other cases would perhaps be found to be a
> waiver of confirmation. But then, constitutional duties are often
> considered to be nondelegable and nonwaivable, so the issues are
> interesting.
>
> Paul Lehto, J.D. ****
>
>
>   ****
>
>
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